Hogg v. Gammon , 127 Ga. 296 ( 1907 )

Beck, J.

(After stating the facts.)

1. In this action, the same being equitable in its character, “to recover land and establish a dividing land line,” the plaintiff insisted upon a certain line, and the defendant upon another, as the true dividing line between them. Hnder the evidence the jury would have been authorized to find that neither line was the true dividing line, but that for a part of the distance the one insisted upon by the plaintiff, and for the remainder of the distance the one insisted upon by the defendant, was, under the law and the evidence, the true dividing line. Consequently it was error for the judge to charge the jury, as a part of his instructions to them, that “if you believe that the plaintiff ought to recover in this case, the form of your verdict ought to be, ‘We, the jury, find for the plaintiff the land in dispute, and that the land line as set out in plaintiff’s petition be the land lying between the parties.’ If you find for the defendant, gentlemen of tire jury, — that is, against the prayers and allegations, of the petition — the form of your verdict will be, ‘We, the jury, find for the defendant;’” because, in effect, such instructions amounted to a direction to the jury to find either for the plaintiff the entire premises in dispute, and the establishment of the dividing line as prayed for by her, or a finding for the defendant; thus taking from the jury the right to find for the plaintiff all, or such part of, the premises in dispute, and to establish the dividing line as the testimony might in their opinion authorize. Under the evidence in this ease it was a question for the jury to determine whether the plaintiff, if entitled to recover at all, was entitled to recover all the land claimed by her, or a part thereof, and to determine whether the dividing line should be established altogether as claimed by her, or partly so, or as contended by defendant. But the natural effect of the instructions quoted was to constrain the jury to believe that whether they found for one or the other party to the case, their verdict should be for the entire premises in dispute.

2. The ruling announced in the second headnote is based upon several decisions of this court. See Shearouse v. Morgan, 111 Ga. 858, and Bowden v. Bowden, 125 Ga. 107.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.